Sanjay Gupta, Hyd, Hyderabad V. ITO, Ward-8(2), Hyd, Hyderabad

ITA 201/HYD/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6333 (ITAT-HYDERABAD)
• Duration Of Justice: 5 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-08-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 14-06-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 22-02-2016
• Court: TRIBUNAL
• Department Lawyers: K J RAO
• Assessee Lawyers: K A SAI PRASAD
• Keywords: Reopening of assessment; Reason to believe
• Section: 143(3); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER I.T.A. NO. 201/HYD/2016 ASSESSMENT YEAR: 2009-10 SRI SANJAY GUPTA, HYDERABAD [PAN: ADEPG7599M] VS THE INCOME TAX OFFICER, WARD-8(2), HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI K.A. SAI PRASAD, AR FOR REVENUE : SHRI K.J. RAO, DR DATE OF HEARING : 03-08-2016 DATE OF PRONOUNCEMENT : 10-08-2016 O R D E R PER B. RAMAKOTAIAH, A.M. : THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-2, HYDERABAD D ATED 20-11-2015. ASSESSEE HAS RAISED AS MANY AS FIVE GR OUNDS BUT MAINLY CONTESTING THE ADDITION OF RS. 3,99,080/ - MADE BY THE ASSESSING OFFICER (AO) IN THE PROCEEDINGS U/ S. 147 OF THE INCOME TAX ACT [ACT]. IN THE COURSE OF PRESENT PROCEEDINGS, ASSESSEE HAS RAISED AN ADDITIONAL GROU ND THAT THE INITIATION OF PROCEEDINGS U/S. 147 ON THE FACTS AND CIRCUMSTANCES OF THE CASE, IS BAD IN LAW. I.T.A. NO. 201/HYD/2016 SRI SANJAY GUPTA :- 2 -: 2. IT WAS SUBMITTED THAT SURVEY OPERATIONS U/S. 133 A WERE CONDUCTED ON 16-10-2008 AND AO FOUND DEFICIT S TOCK OF RS. 12,29,448/-. THE RETURN OF INCOME FOR AY. 2 009-10 WAS FILED ON 25-09-2010. INITIALLY NOTICES U/S. 14 3(2) WAS ISSUED ON 17-11-2011 I.E., BEYOND THE SPECIFIED DAT E.NOTICE U/S 142(1), CALLING FOR CERTAIN DETAILS, WAS ALSO I SSUED ON 17-10-2011. ASSESSEE OBJECTED TO THE ISSUANCE OF N OTICES. THEREAFTER, A NOTICE U/S. 148 WAS ISSUED ON 26-12-2 011 AND ASSESSMENT U/S. 143(3) R.W.S. 147 WAS COMPLETED ON 20-12- 2012, MAKING AN ADDITION OF RS. 3,99,080/- TOWARDS PROFIT ON DEFICIT STOCK. EVEN THOUGH ASSESSEE CONTESTED THE ADDITION BEFORE THE LD. CIT(A), HE WAS UNSUCCESSFUL . 3. PLACING THE ORDER SHEETS OBTAINED FROM ASSESSMEN T RECORD, LD. COUNSEL SUBMITTED THAT SATISFACTION FOR REOPENING THE ASSESSMENT WAS RECORDED ON 12-03-2012 BY THE AO, ITO, WARD-8(2), WHEREAS THE NOTICE U/S. 148 WAS ISSUED ON 26-12-2011 ITSELF, WHICH WAS SERVED ON AS SESSEE. 4. AS WE NOTICED THE DATE OF ISSUANCE OF NOTICE AS STATED IN THE ASSESSMENT ORDER WAS 26-12-2011 AND ASSESSEE AS FILED LETTER ON 08-02-2012 IN RESPONSE TO SAID NOTI CE STATING THAT THE RETURN FILED EARLIER MAY BE TREATED AS RE TURN IN RESPONSE TO NOTICE ISSUED U/S. 148, WE HAVE ASKED THE LD. DR TO FURNISH THE COPIES OF THE ORDER SHEET ENTRIES ALONG WITH THE RECORD. 5. ON NOTICING THE RECORD, IT IS VERY CLEAR THAT IT O HAS ISSUED NOTICES ON 17-11-2011 AND WHEN OBJECTED, HE HAS I.T.A. NO. 201/HYD/2016 SRI SANJAY GUPTA :- 3 -: DROPPED THE PROCEEDINGS ON 05-12-2011 BY NOTING THA T THE PROCEEDINGS IN 17-07-2011 ARE BEING CANCELLED. THE REAFTER, IN A SEPARATE ORDER SHEET A SATISFACTION WAS RECORD ED ON 12-03-2012 AS UNDER: 12.03.2012 BRIEF REASONS FOR REOPENING OF ASSESSMENT U/S. 147 : AS PER THE FINAL REPORT OF SURVEY THE CONCEALMENT IS ARRIVED A T RS. 3,44,245 AND THE ASSESSEE HAS NOT SHOWN THE INCOME OF RS. 3, 44,245 IN THE ROI FOR THE AY. 2009-10. THE ASSESSEE HAS NOT DEDUCTED THE TAX ON THE PAYMENTS OF INTEREST ON THE UNSECURED LO ANS OF RS. 50,00,000. THE ASSESSEE HAS NOT EXPLAINED THE UNSE CURED LOANS OF RS. 50,00,000. SINCE THE ASSESSEE HAS NOT SHOWN THE INCOME IN THE RETURN OF INCOME. I HAVE A REASON TO BELIEV E THAT THERE IS AN ESCAPEMENT OF INCOME FOR THE AY. 2009-10 CHARGEABLE TO TAX. UNDER THESE CIRCUMSTANCES I FELT IT IS A FIT CASE T O ISSUE A NOTICE U/S. 148 AS I HAVE REASON TO BELIEVE THAT THERE IS AN ESCAPEMENT OF INCOME CHARGEABLE TO TAX FOR THE AY. 2009-10. PUT UP NOTICE U/S. 148. SD/- (K. ANNAVARAM) INCOME TAX OFFICER, WARD-8(2) HYDERABAD. 6. AS CAN BE SEEN FROM THE ABOVE, AO HAS INDEED ISS UED A NOTICE U/S. 148 ON 26-12-2011 ON WHICH DATE, THERE IS NO RECORDING OF SATISFACTION FOR REOPENING THE ASSESSM ENT U/S. 147. IN FACT IT WAS RECORDED MUCH LATER ON 12-03-2 012. ACCORDINGLY, WE ARE OF THE OPINION THAT THE PROCEED INGS INITIATED U/S. 147 ARE BAD IN LAW AND THE ASSESSMEN T COMPLETED IN RESPONSE TO THE RETURN FILED CONSEQUEN T TO THE NOTICE U/S. 148 DT. 26-12-2011 ARE ABINITIO VOID . IN VIEW OF THIS, ORDERS OF THE AO AND CIT(A) ARE HEREBY ANNULL ED. I.T.A. NO. 201/HYD/2016 SRI SANJAY GUPTA :- 4 -: ASSESSEES GROUNDS ON THIS ARE ALLOWED. THE OTHER GROUNDS ON MERITS THEREFORE BECOME ACADEMIC IN NATURE. 7. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH AUGUST, 2016 SD/- SD/- (P. MADHAVI DEVI) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT ME MBER HYDERABAD, DATED 10 TH AUGUST, 2016 TNMM COPY TO : 1. SRI SANJAY GUPTA, HYDERABAD. C/O. CH. PARTHASAR ATHY & CO., 1-1-298/2/B/3, 1 ST FLOOR, SOWBHAGYA AVENUE, ST. NO. 1, ASHOK NAGAR, HYDERABAD. 2. THE INCOME TAX OFFICER, WARD-8(2), HYDERABAD. 3. CIT (APPEALS)-2, HYDERABAD. 4. PR.CIT-2, HYDERABAD. 5. D.R. ITAT, HYDERABAD. 6. GUARD FILE.